High Court dismisses challenges against law that criminalises sex between men

(From left) Mr Bryan Choong Chee Hong, Mr Johnson Ong Ming and Dr Roy Tan Seng Kee filed three separate legal challenges against Section 377A of the Penal Code last year and in 2018. PHOTOS: CHING S. SIA, ROY TAN/FACEBOOK

SINGAPORE - The High Court has dismissed three separate legal challenges against Section 377A of the Penal Code, which criminalises consensual sex between men.

Justice See Kee Oon, who made the judgment in chambers on Monday (March 30), said the decision by the Court of Appeal in 2014, involving gay couple Mr Lim Meng Suang and Mr Kenneth Chee, remains binding.

"I am unable to agree that there are cogent reasons for a Singapore court to be able to depart from binding decisions of the highest court in the land," said Justice See in a 105-page written judgment released to the media on Monday.

The challenges, filed separately last year and in 2018, were by lesbian, gay, bisexual and transgender (LGBT) rights activist and retired medical professional Roy Tan, disc jockey Johnson Ong Ming, also known as DJ Big Kid, and the former executive director of LGBT non-profit organisation Oogachaga Bryan Choong.

They each contended that the law is inconsistent with various articles of Singapore's Constitution.

Justice See dismissed all the arguments raised against the constitutionality of Section 377A, saying the High Court had reached the same conclusions as the Court of Appeal, even after taking into account new material put forth by the plaintiffs.

Section 377A criminalises acts of "gross indecency" between men. The offence carries a jail term of up to two years.

Argument on sexual orientation

Mr Ong's legal team, led by Mr Eugene Thuraisingam, had sought to prove that sexual orientation cannot be wilfully changed and is a product of genetic and environmental factors.

The lawyers argued, among other things, that Section 377A thus criminalises gay men on the basis of their identity.

But Justice See said there is no comprehensive scientific consensus on whether a person's sexual orientation is immutable.

The court is also not the appropriate forum to seek resolution of a scientific issue that remains controversial, he added.

"Any controversy is best addressed by the relevant scientific community itself. Ultimately, the issue is an extra-legal one that does not come under the proper purview of the courts," Justice See said.

He also noted that Section 377A criminalises homosexual acts and not a person's sexual orientation or identity in itself.

"Hence, sexual orientation per se, or whether the male person in question identifies himself as bisexual, heterosexual or homosexual, is completely irrelevant," he added.

"A heterosexual male can equally be prosecuted under Section 377A if he commits such an offence."

Argument on purpose of Section 377A

Mr Choong's legal team, led by Senior Counsel Harpreet Singh Nehal of Audent Chambers, had submitted new documents from the British National Archives to argue that Section 377A was originally intended to curtail the spread of male prostitution, not consensual private sexual acts between men.

They also argued the law was not intended to criminalise penetrative sex, which was covered under Section 377, a separate law that was repealed in 2007.

These documents were not available when the Court of Appeal dismissed a 2014 challenge brought by Mr Lim and Mr Chee.

Rejecting these arguments, Justice See said Section 377A was intended to safeguard public morals generally as well as enable enforcement and prosecution of all forms of gross indecency between men.

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He said: "Section 377A is not limited to commercial sex between males. It is framed widely enough to cover all forms of male homosexual activity including penetrative and non-penetrative sex, whether in public or in private and with or without consent."

He also said Section 377A does overlap with the now-defunct Section 377, but noted that there was "no exclusionary intent" to avoid this overlap when the laws were introduced. The Penal Code also contains "numerous examples of overlapping offences", he added.

Argument on non-enforcement of Section 377A

Dr Tan's lawyer, Mr M. Ravi of Carson Law Chambers, had argued that Section 377A violates Articles 9, 12 and 14 of the Constitution.

He had said it was "absurd and arbitrary" to allow the law to remain on Singapore's statutes given that the Government's official policy position is non-enforcement in respect of consensual homosexual acts in private between men.

But Justice See noted that Dr Tan had taken issue with the enforcement of Section 377A and not the constitutionality of the law itself.

These issues are separate and distinct, he said, adding that the manner in which a provision is enforced, even if arbitrary, cannot in itself render the provision unconstitutional.

"The appropriate recourse in such a situation would be to seek administrative review, not constitutional review," he said.

The Attorney-General's Chambers (AGC), which was named as the respondent in all three cases, had argued that the question of whether to repeal Section 377A is a "deeply divisive socio-political issue" that should be decided by Parliament, not the judiciary.

This was also the position adopted by the Court of Appeal in 2014, the AGC had noted.

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